POWERS OF ATTORNEY
A person who grants a Power of Attorney signs the appropriate document which names another person as his Attorney, or more usually two persons as Attorneys, with authority to carry out business, usually all business on behalf of the grantor, including signing legal documents and bank transactions and making and receiving payments of money. The usual intention is that this document will not be used until such times as the grantor ceases to be able to transact his or her own business by reason, usually, of physical or mental ill health. Once the document has been signed and registered, it is normally retained in the safe keeping of the grantor or, more usually, of the grantor’s solicitor, to be made available to the Attorney in the event of the grantor becoming incapable. In order for the Power of Attorney to achieve these objectives, it requires to be registered at the Office of the Public Guardian where the registration fee currently stands at £81.00.
The Power of Attorney may contain two different types of powers. In the first place, it may contain continuing powers which are usually the business powers referred to above to include writing cheques, operating bank accounts etc. However, the Power of Attorney may contain also welfare provisions which provides the Attorney with authority to participate in confidential information and decisions relating to the grantors physical and mental health, medical treatment and general welfare. While these powers may be seen to impose some obligation and responsibility upon the attorney, these welfare powers of attorney have become much more common in practice because various health and welfare professionals now sometimes decline to discuss a patient’s health, treatment and other circumstances with relatives unless a duly registered Power of Attorney including welfare powers is produced.
In the absence of a duly registered Power of Attorney, the relatives of a person who becomes unable to manage his own affairs or to attend to his own welfare would usually have to apply to court, with appropriate (and not inexpensive) medical examination and certification, in order to obtain appropriate powers and this can involve significant delay and expense. As this is a court process it is very precise and demanding and I have had a case where clients acting independently and quite decently were nevertheless called to court on allegations of contempt of court due to technical errors on their part. The Power of Attorney avoids that risk.
Quite often the circumstances in which a Power of Attorney is required occur without notice and in which it is too late to start creating a Power of Attorney and, for that reason, it is suggested that the document be created even where there is immediately apparent need for it, as a precautionary measure.
While a Power of Attorney is an important document with a potentially very significant legal effect, there is no legal requirement for a solicitor to be involved in its creation or registration. Nevertheless, it is a complex document which is subject to a complicated process. Legal assistance is certainly recommended. There are non-solicitor agencies which undertake the preparation and registration of powers of attorney, However, these agencies do not provide the protection which is available through a solicitors services including legally qualified advice and experience, professional guarantee and professional indemnity funds to provide compensation for any wrongdoing and professional regulation of fees and conduct etc., through the Law Society of Scotland. In particular, the level of fees charged by solicitors is subject to professional, regulatory control.